BY JAMES ADAMS

Many people see climate change as a technical issue, a challenge for inventors of electric cars or designers of sustainable homes. Others see it as a policy problem, a debate over which levers will most effectively encourage households and businesses to reduce their emissions. Both perspectives have much to contribute, yet I would argue that climate change is a legal issue, too, for it raises questions of obligations, proper processes and fundamental rights.

In recent weeks, there has been increased attention on New Zealand’s legislative response to what has been called “the greatest challenge of our time.”[1] A cross-party group of Members of Parliament (MPs), led by Dr. Kennedy Graham, commissioned a report on meeting our Paris Agreement obligations, which was released in the last month.[2] This spurred an afternoon of debate in Parliament in which MPs from all parties participated.[3] Generation Zero, a youth-led climate change activist group, has also been promoting its campaign for a “Zero Carbon Act”,[4] which would establish an independent commission and five-yearly carbon budgets. The idea that New Zealand is falling behind has been a constant theme in recent years, with commentators noting that New Zealand has no plan to reach its goal of reducing GHG emissions by 50% from 1990 levels by 2050.[5]

Many have pointed to the United Kingdom (UK) and its Climate Change Act 2008 as a model New Zealand should follow.[6] This article takes a closer look at the UK’s legislative response to climate change –what the Act does, whether it works, and to what extent we should follow UK’s lead on this issue.

I argue that UK’s Climate Change Act (2008) can be commended for being the first of its kind in the world, but it is not a silver bullet solution. If New Zealand were to implement something similar, it would be a significant improvement on what we currently have, but either way, we would need to keep up the pressure on the government to ensure our aspirations for climate action become reality.

The Climate Change Act

In April 2005, a Private Member’s Bill was brought before the British Parliament.[7] The Bill would have imposed a duty on the British Prime Minister to ensure annual emission reductions, as well as requiring Members of Parliament to publish a report specifying how they had taken action on climate change, both in their voting and in their personal lives.[8] The Bill did not pass,[9] but it sparked a discussion on what a “Climate Change Act” could look like.

The Conservative Party – then in opposition – crafted their own Bill, as did the Labour Government. Both promised substantial changes with only slightly different approaches, and so a compromise could be reached. By 2008, the Climate Change Act became law after receiving Royal Assent.[10] In the Commons, it had passed with only five MPs dissenting –a testament to the widespread agreement that climate change is a serious issue and that this Act was the right response.[11]

Primarily, the Act imposes a duty on the Secretary of State to ensure the UK reduces its greenhouse gas (“GHG”) emissions by 80% from 1990 levels by 2050.[12] This was an ambitious goal, especially at the time when it was made. However, there is some debate over how enforceable this duty really is:[13] if the target were not met, the Courts might order the government to make changes, but in the meantime, the situation is unclear.[14] There may be public pressure for individuals to resign, but as Ministers are appointed by prerogative, the Courts cannot punish the Secretary of State for failing to reduce emissions. The government also has the ability to amend the carbon target, but only in narrowly-defined circumstances.[15]

Secondly, the Act imposes a duty on the Secretary of State to design five-yearly carbon budgets on the advice of the newly-established Committee on Climate Change (“the Committee”).[16] These are subject to affirmative resolution procedure, which means that both Houses of Parliament must approve the carbon budgets before they become law.[17] However, Parliament cannot amend the proposals; they must either accept or refuse them outright.

The New Zealand Parliament has similarly used this procedure in the past, though the Regulations Review Committee advised in 2007 that it should be used only when amending the rules concerning the administrative affairs of Parliament.[18] For any other purpose, the New Zealand report recommended Parliament follow the full process of going to Select Committee and debating the proposal in full.[19]

In the UK, the use of affirmative resolution procedure for Carbon Budgets was an attempt to depoliticise the issue. By requiring only a single vote, the procedure avoids providing a platform for critics, as MPs are encouraged to see the default option as approving the carbon budgets. However, it reduces the ability of Parliament to determine how much each sector should have to reduce its emissions by; this power is delegated to the Committee and the Secretary.

As a result of this legislation, there have been several commendable developments. Five carbon budgets have been passed, covering the period to 2032 and promising meaningful reductions.[20] According to the Grantham Institute, the UK’s emissions have declined, from 562 mega-tonnes of CO2 equivalent in 2009 to 541 mega-tonnes in 2011.[21] The Committee’s 2016 report says that “UK emissions were 38% below 1990 levels in 2015. The first carbon budget was met and the UK is currently on track to outperform on the second and third. The Committee was also given more advisory powers with the Infrastructure Act 2015,[22] suggesting that climate change is being taken considered in a variety of areas.

New Zealand’s response seems to pale in comparison. Our legislation is weak and our goals are unambitious. Climate change mitigation was removed from the Local Government Act 2002[24] and the Resource Management Act 1991,[25] placing all the onus on the Emissions Trading Scheme. The UK has pledged to reduce its emissions by 35% from 1990 levels by 2020; New Zealand has pledged to reduce ours by merely 5%.[26] As reported by the Equal Justice Project last year, the insufficiency of this response has led civil society groups to advocate for stronger action on the issue.[27] Perhaps, as Generation Zero and others say, we should follow the UK’s example.

The UK: not such a good model?

Yet climate action in the UK is not progressing as well as some might suggest. New issues have replaced climate change on the political agenda and the Act has failed to ensure that that the government keeps to its word. After the Brexit referendum, Prime Minister David Cameron resigned, for he had unsuccessfully campaigned for Britain to stay in the European Union.[28] His successor, Theresa May, has overseen some concerning changes in terms of Britain’s response to climate change.

For instance, the Department of Energy and Climate Change (DECC), which was established in 2008, in part to implement the government’s obligations under the Climate Change Act, was disbanded last year. Its functions have been taken up by the new Department for Business, Energy and Industrial Strategy.[29] The move was seen by many as an indication that climate change was low on the list of priorities for the new Government.[30] Other actions by the UK’s Government do not paint an entirely rosy picture: a number of hydraulic fracturing projects have been approved, [31] the annual ‘Renewable Energy Roadmaps’ appear to have been abandoned[32] and the Government has also failed to report on how they intend to meet the fourth and fifth carbon budgets.[33] The Committee’s 2016 report recommended a mix of stronger implementation of existing plans as well as new thinking on how to make up for the current “insufficiency” of action.[34]

Karla Hill, a legal analyst at Client Earth, notes that “the core philosophy of the Act is that this series of built-in duties, actions and reporting requirements will create transparency, accountability and political pressure to ensure that governments will comply.”[35] Her organisation, a UK environmental law group, has also been fighting for the UK’s Government to produce a meaningful air pollution plan, and her organisation sees many parallels in the Government’s inaction on the two issues.[36]

In 2015, the UK Supreme Court ruled that the Government’s air quality plans were so weak that they were inconsistent with EU directives, ruling that the relevant ministry must produce an updated plan.[37] Client Earth successfully challenged the updated plans, on the basis that the Government had made small changes to avoid a penalty. This is despite reports that air pollution from nitrous dioxide account for the equivalent of 23,500 deaths annually in Britain.[38]

Climate change is a more complex issue than local air pollution, but there are some similarities in how both issues have been handled: the UK Government has been slow to release reports explaining how it will meet its targets, resulting in a gap between the rhetoric and the reality. Jonathon Church, who also works at Client Earth, put it like this: “Government lauds the Climate Change Act in public, but its actions don’t match its words. Successive governments have failed to account for how their decisions are impacting carbon emissions, with major climate decisions being made without mention of carbon targets or how the UK will get back on track to meet them.”[39] With EU directives likely to be no longer available as a basis for judicial review in the UK, Client Earth and others will be forced to rely on the Climate Change Act 2008 to hold the government to account.

Essentially, the UK’s issues in this area do no sound dissimilar to New Zealand’s, despite their ground-breaking legislation. That has not dissuaded the recent campaign here for a Zero Carbon Act, modelled on the British equivalent.[40] Notably, their goal is more ambitious than the UK’s: their Act would aim for a 100% reduction in GHG emissions from 1990 levels by 2050, compared to the UK’s 80% reduction target. This would put New Zealand on a par with Sweden, and ahead of countries such as Denmark and Costa Rica.[41]

The Zero Carbon Act campaign relies on essentially the same legislative framework that underpinned the UK Climate Change Act 2008.[42] It would establish an independent Climate Commission which would provide advice on carbon budgeting and implementation, as well as an annual update, just like the UK’s Committee on Climate Change does.

It would also impose a legal duty on a Minister to ensure that appropriate plans are made and targets are reached. The campaign’s website details that all New Zealanders would have open standing to seek judicial review of the Minister’s decisions, suggesting that the enforcement would be made clear by the Act itself. This would give it an advantage over the UK’s legislation, which (as noted above) has spurred debate about whether the duty impose by the Act could be enforced and how.

For the sake of transparency and predictability, the Minister would be required to set carbon budgets twelve years in advance. This delay period, which is another feature copied from the UK Act, would give organisations and individuals plenty of warning so that they are well prepared when more stringent regulations come into force. Plans for meeting these budgets would also need to be produced ten years in advance, and the reasons for any changes would have to be publically notified.

There is no mention that Parliament would have the ability to vote on the carbon budgets or plans, and there appears to be no requirement that the Minister consult either. It is likely that the minister would consult, but given how far-reaching these regulations could be, it would be wise for there to be an opportunity for democratic input at some stage in the process. The risk otherwise is that people will perceive the process as anti-democratic and Parliament will undermine the Act by legislating amendments.

The major difference between the two Acts is a technical one: in the UK, all GHGs are counted together, whereas the proposed Zero Carbon Act would take a “two baskets” approach. This means that different plans and rules would apply to long-lived GHGs, such as carbon dioxide, compared to short-lived GHGs, such as methane. New Zealand’s emissions profile is different to Britain’s in that our emissions largely come from agriculture in the form of methane[43] and the Zero Carbon Act campaign has intelligently recognised this. That being said, the idea that methane emissions should be treated differently is hardly new. Indeed, this is the thinking that currently means that agriculture is not covered by the Emissions Trading Scheme.[44]

In a way, that is the general theme of the proposed Zero Carbon Act: its approach is praiseworthy but not new, and a government that was determined not to take serious action on climate change could largely get away with it. It closely follows the British model, and – despite their Government’s rhetoric – the Climate Change Act 2008 has not been a resounding success.[45] It passed with unusual cross-party support, but the political will to keep the spotlight on this issue has faded. In New Zealand, we lack even this consensus.

Yet no technology alone will solve this problem, and no one policy will work everywhere. Likewise, there is no silver bullet law that will fulfill the legislature’s duty to act on climate change. A statute following the discussed model would be a useful part of the solution, but without continued public pressure and a dose of creative thinking, it will not be enough.

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[1] Justin Gillis “UN Climate Panel Endorses Ceiling on Global Emissions” The New York Times (online ed, New York, 7 September 2013).